Bob Buckley: A lesson from Hobby Lobby case – read before ranting

I must confess that when I first heard about the Supreme Court decision involving Hobby Lobby this week, I was prepared to state that this decision is further proof that the Court has lost its way.

I had previously written about one of the most atrocious decisions in American History, Citizens United v. Federal Election Commission, a 2010 decision of the Supreme Court that declared that non-breathers, corporations, had First Amendment rights to free speech under the United States Constitution. I hastily and erroneously assumed that the Hobby Lobby case was extending the First Amendment right to free exercise of religion to corporations and was prepared to lambast the Supreme Court for its crazy opinion.

Now that I have read the opinion, I must confess that it makes sense and is clearly not an expression of the proposition that corporations have the constitutional right to free exercise of religion.

I don't agree with the owners of Hobby Lobby and Mardel's as to their position on the contraceptives that were at issue in the court case. However, I respect and defend their right to have the religious beliefs they do have. Disagreement and discourse about our disagreements are the foundations of our country's freedoms, and while we may disagree with each other, we must respect our rights to disagree and to express our disagreements.

Much has been written and said about the Hobby Lobby case in the last week and so I may not need to say much about the opinion. However, since there are several misconceptions about the opinion that have been expressed, I think it is important that we all understand what the court in the Hobby Lobby case says, and more importantly what it does not say.

First, the owners of Hobby Lobby and Mardel's, and the closely-held corporations they own were the plaintiffs in the case. Closely-held means that the corporations are owned by a few people, in this case the families that brought the lawsuit. Unlike publicly traded corporations that have many shareholders and boards of directors with diverse interests and beliefs, the owners of these corporations were unified in their beliefs.

The owners of Hobby Lobby objected to regulations that were adopted by the federal Department of Health and Human Services after the Affordable Care Act was adopted that mandated that health insurance issued by the employer provide for all kinds of contraceptive coverage. The owners did not object to contraception across the board, but to four methods that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

The owners have the fervent belief that life begins at conception and have religious objection to ending life after conception. It is interesting to note that HHS included in its regulations exemptions for religious employers for all contraceptives in recognition of religious beliefs that resist any contraceptive. However, the exemption did not extend to for-profit employers like Hobby Lobby and Mardel's.

The basis for the Court's invalidating the HHS mandate on these four contraceptives that prevented an already fertilized egg from developing further was that the mandate violated the Religious Freedom Restoration Act, a federal law enacted by Congress in 1993 early during Bill Clinton's first term as President.

The RFRA prohibits government from “substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The Supreme Court assumed that there was a compelling governmental interest in the regulation as it furthers a legitimate and compelling interest in the health of female employees. However, as Justice Kennedy notes in a concurring opinion, the government did not meet its burden to show that the means it uses to regulate is the least restrictive way to further its interest. Thus, the court held that the regulation violates the 1993 federal statutes.

An important foundation of the Hobby Lobby decision is recognition of the statutory definition of “person” in the RFRA. Congress chose to include in its definition of person “corporations” and other non-breathers.

Another critical component of the Supreme Court's decision is its announcement that they did not have to reach any claims that the regulations violated the Free Exercise Clause in the U.S. Constitution. Thus, there was no pronouncement that corporations possessed the right to free exercise of religion. I guess that means that there will be no corporations sitting next to me in church next Sunday.

A final note should be made about this opinion. The Supreme Court was very careful to limit the scope of its opinion to closely held corporations. Perhaps on another day it will expand the opinion to publicly traded corporations and also consider expansion of the First Amendment rights of corporations.

And a final thought. Before starting a verbal battle over the Hobby Lobby opinion, whether on Facebook or over coffee this weekend, it might help to read the opinion. You don't have to be a lawyer to understand its very limited scope and application.

Count me as one who does not think that this is an earth shattering Supreme Court case. I am just glad I didn't make any stupid statements before I read it.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com